发布时间 : 星期四 文章鑻卞浗鍚堝悓娉曞涔犺祫鏂?- 鐧惧害鏂囧簱更新完毕开始阅读b6c1483af7ec4afe04a1df79
Exception:
Key principles: where an offer is made under seal or supported by consideration of the offeree and the offer provides that the offer will be open for a certain period of time, the offer cannot be withdrawn before the lapse of that time. Routledge v Grant (1828) 4 Bing 653 p79. Facts: D offered to take a lease of P‘s premises and said he would keep the offer open for 6 weeks.On Apr 9, D withdrew the offer, and on Apr 29, P purported to accept it.
Held: there was no contract. Because one party cannot be bound without the other. As D
repudiated the contract on Apr 9, before the expiration of the 6 weeks, he had a right to say that P should not enforce it afterwards. d.Lapse of time
Key principles: An offer lapses at the time stipulated by the offeror. If no time is stipulated by the offeror the offer lapses after a reasonable time. The determination of reasonable time depends on the different types of contract or offer. if no time is fixed for an offer to lapse, then it lapses after the passage of a reasonable time. Ramsgate v Montefirore [1866] LR 1 Ex 109 Facts: The defendant offered to purchase shares in the claimant company at a certain price. Six months later the claimant accepted this offer by which time the value of the shares had fallen. The defendant had not withdrawn the offer but refused to go through with the sale. The claimant brought an action for specific performance of the contract.
Held: D was entitled to refuse to take up the shares. His offer had lapsed because an excessive amount of time had passed. The offer was no longer open as due to the nature of the subject matter of the contract the offer lapsed after a reasonable period of time. Therefore there was no contract and the claimant's action for specific performance was unsuccessfu Manchester Diocesen v Commercial and General Investments [1969] 3 All ER 1593 p85. Facts: MD called for tenders relating to property. C&G submitted a tender (offer to buy). The tender stated that acceptance was to be notified to the person whose tender was accepted by letter sent ?by post addressed to the address given in his tender‘. MD decided to accept C&G tender and sent their acceptance to the CG's solicitor, which was not the address given in the offer. C&G knew of this acceptance.
Held: no contract was formed earlier before Jan 7 thus it was open to P to accept it on Jan 7 and P‘s letter of that date was effectual to bind the D contractually. e. Death of the offeror
Key principles: generally, where the offeror dies before the acceptance of the offer and the offeree knows about it, the offeree cannot accept the offer unless it can be proved that the offer was intended not to be personal but was capable of acceptance by the offeror‘s personal representative. Bradbury v Morgan (1862) 1 H & C 249 p87. Facts: P credited H.J.Leigh in the usual way of their business. H.J.Leigh died and P without knowledge of his death, continued to supply the deceased with goods on credit. ￡100 owed by the deceased to P, and D (executor), declined to pay.
Held: P is entitled to judgment. A contract is not put an end to, by death. f. Death of the offeree
Key principles: where the offer requires personal performance of the contract by the offeree, e.g. contracts of employment or agency, the offeree‘s death will bring the offer to an end. g. Supervening incapacity of the offeror
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Key principles: if the offeree knows that the offeror does not have the capacity to contract, the former cannot, as a general rule, accept the offer. h. Other ways in which an offer comes to an end
key principles: change of circumstances;failure of a condition precedent
Communication of revocation
Key principles: a) an offer can be revoked by the offeror at any time before acceptance, but the revocation is only effective once it is actually communicated to the offeree. Even where the postal rule applies, the position is the same.(an exception to the postal rule, revocation takes place at the moment when the offeree received it instead of the moment the revocation is posted) Byrne v Van Tienhoven (1880) 5 CPD 344 p62. Facts: On Oct 1, D posted a letter to P offering to sell them tin plates. On Oct 8, D revoked their offer by post. On Oct 11, P accepted the offer by telegraph, and confirmed their acceptance by a letter dated Oct 15. On Oct 20, P received D‘s letter of revocation.
Held: the revocation of the offer was not effective because it was only communicated on Oct 20, which was after the acceptance of the offer on Oct 11. There was a contract between A and B because revocation of offer could be treated as effectively communicated to the offeree when it was received. Henthorn v Fraser [1892] 2 Ch 27 Facts: P, who lived at Birkenhead, called D, to negotiate for the purchase of houses. D signed and handed to him a note giving him the option of purchase for fourteen days. On the next day D posted to P a withdrawal of the offer. This withdrawal was posted between 12 and 1 o'clock, and did not reach Birkenhead till after 5 P.M. In the meantime P. had, at 3.50 P.M., posted to D an unconditional acceptance of the offer, which was delivered in Liverpool after D's office had closed, and was opened by D on the following morning.
Held: a binding contract was made on the posting of P's acceptance, that the revocation of the offer was too late, and that P was entitled to specific performance.
b) the revocation of offer can be communicated by the offeror or by the offeror‘s agent or by a reliable person. Dickinson v Dodds (1876) 2 CHD 463 p83. Facts: D delivered to P an offer to sell certain houses. However, P was informed by a Mr. Berry that D had been offering or agreeing to sell the property to another person.
Held: a sale to a third person which came to the knowledge of the person to whom the offer was made was an effectual withdrawal of the offer.
Battle of forms
Key principles: a) When parties go back and forth in the negotiation and one party prescribes one form for the contract and the other party another form and this goes on, the terms of the party which calls the last shot prevail.
This scenario also presents offer, counter-offer and offer and counter-offer situations.
Key principles: an acceptance must amount to a final and unqualified assent to the terms of the offer. Butler Machine Tool v Ex-Cell-o Corporation Ltd. [1979] 1 W.L.R. 401 p75. Facts: P sent a standard term contract to D which provided for a price variation clause and stated that this condition would prevail.D ignored Ps‘ standard term contract and placed an order for the machine on their own standard terms which did not include a price variation clause. D‘s standard
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term contract was signed by P. P however claim that the price variation clause of the standard term contained in their offer was a term of their contract with D.
Held: D‘s terms prevailed and so the price variation clause was not a term of the contract. D‘s order was not an acceptance because it contained additional requirements. It was a rejection and counter-offer.
b) Lord Denning has however expressed a different approach. He appears to take the view that in cases where a battle of forms is confronted by the Court, it should adopt a harmonious construction and it should look at the terms and conditions of both parties together and try to reconcile them; if differences were irreconcilable, the conflicting terms should be scrapped and replaced by a reasonable implication.
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Lecture 4 Certainty and Finality
A contract can be invalid because of lack of certainty or incompleteness Uncertainty or incompleteness may arise because: 1. the parties have not agreed upon on important terms 2. the terms are vague
3. remuneration has not been agreed upon 4. the price-fixing mechanism is uncertain
5. the contract contains some meaningless clauses
Importance of certainty General considerations
Certainty or completeness does not mean that each and every term must be certain and complete; an agreement can be enforced where the basic terms of the agreement are certain and complete or capable of being made certain and complete by a reasonable person conversant with the commercial background and circumstances in which the alleged contract was made
The test here is objective as well as quantitative: objective because the courts determine the question of certainty and finality by applying an objective test; quantitative because the courts are satisfied with a relative amount of certainty essential to make a contract commercially viable.
The test of certainty:
The test here is objective as well as quantitative:
(1). Objective test: Whether the contract is certain or not does not depend on what the parties‘ point of view but a reasonable people‘s.
(2). Quantitative test: The courts will be satisfied with a relative amount of certainty essential to make a contract commercially viable
Vague and ambiguous terms
a) Vagueness and ambiguity relating to the subject matter of the contract
Where the subject matter of the contract is not clear and open to different meanings, the contract may be invalid. Raffles v Wichelhaus (1864) 2 Hurl & C 906 (P123) Fact: P agreed to sell cotton to D ―to arrive ex Peerless from Bombay‖. There were two ships by the same name, Peerless, one leaving Bombay in October the other leaving Bombay in December. P meant the ship sailing in October, D meant the ship sailing in December. The parties were at cross purposes.
Held: No contract came into existence. The subject matter(the time of delivery) is simply unclear. Mellish, in support of the plea: There is nothing on the face of the contract to show which Peerless was meant; so that this is a plain case of latent ambiguity. b) Vagueness and ambiguity relating to the parties
Where the identity of the offeree is material the offer can be accepted only by the person to whom it is addressed. Boulton v Jones (1857) 2 H&N 564 (P165) Fact: Jones offered to buy 50 ft of leather hose of Brochlehurst from whom he could claim a set-off in the price. Brochlehurst had in the meantime sold his business to Boulton who received Jones‘ offer. Boulton accepted the offer.
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